COUNSEL: For the United States America: Rudolph
W. Giuliani, United States Attorney for the Southern District of New York, of
counsel: Bruce A. Baird, Esq., Aaron R. Marcu, Esq., Frank H. Sherman, Esq.,
Assistant United States Attorneys.

For Defendant Carmine Persico: Frank
Lopez, Esq.

For Defendant Gennaro Langella: David Breitbart, Esq.

New York, New York, for Alphonse Persico: David DePetris, Esq., Stanley
Meyer, Esq.

OPINION:[*754]
OPINION and ORDER JOHN F. KEENAN, United States District Judge:

Background

All defendants were convicted by
jury verdict after an eight-month trial of RICO conspiracy violations, 18
U.S.C. § 1962(d) and all, save defendant Jack DeRoss, were convicted of
substantive RICO violations, 18
U.S.C. § 1962(c). The jury also convicted on several other counts and
acquitted on some other counts as well. [**2] To
the degree necessary a factual recital and statement relating to the other
convictions will be contained in the discussion below. The jury found that the
defendants were members of, or associated with, the Colombo Family of La Cosa
Nostra, a criminal enterprise that systematically engaged in a wide-range of
criminal activities.

Several of the defendants move for an order setting
aside the jury's verdict and entering judgments of acquittal, pursuant to Fed.
R. Crim. P. 29(c), and for other relief. In the main, the motions raise
arguments already advanced and rejected by this Court.

The defendant
Dominic Cataldo joins in the motions applicable to him. Although defendant
Gennaro Langella filed no post-trial motions, the Court assumes that he joins
with those of his co-defendants.

All motions are denied for the reasons
set forth below.

Discussion Carmine Persico's Due Process
Contentions

Carmine Persico claims that the Indictment is the
product of Government misconduct, so outrageous as to have deprived Persico of
his right to due process of law and to require dismissal of the prosecution. He
also urges a hearing to be held to establish the alleged misconduct. His son,
Alphonse [**3] Persico, joins in this motion.

Carmine Persico
contends that he is entitled to an evidentiary hearing in connection with his
alleged due process claim. The Court, over repeated prosecution objection, gave
Persico broad latitude to prove governmental misconduct at trial.

Over
objection Carmine Persico was permitted to call Joel Cohen, a former Strike
Force prosecutor, as a witness. He subpoenaed Mr. Cohen. The Government
maintains that Carmine Persico's counsel interviewed him and that Mr. Cohen
appeared at the Courthouse on the appointed day. However, Mr. Cohen was
discharged and not called to testify. The defense does not dispute those
Government assertions.

Following is a summary recital of the evidence
relating to the Annicharico situation.

In the summer of 1977, one Victor
Puglisi asked Special Agent Annicharico to have Carmine Persico brought from the
United States Penitentiary in Atlanta, where he was serving a sentence for
hijacking, to the Metropolitan Correctional Center in New York so that his
"colleagues," Andrew Russo, in particular, could meet with him. [*755] The Eastern District [**5] Organized Crime Task Force obtained a writ of habeas
corpus ad testificandum, and Persico was produced in New York. Shortly
thereafter, Puglisi passed a bribe to the agent to compensate him for the move.
Later in the year, Carmine Persico was returned to Atlanta by the authorities.
In December, 1977, Puglisi offered the agent another bribe. Again, Carmine
Persico was brought to New York on a writ and again a payoff was made. In a
recorded conversation with the agent on February 2, 1978 (GX 118), Carmine
Persico confirmed that Victor Puglisi was acting on behalf of Mr. Persico and
Andrew Russo in his dealings with the agent. In that conversation, Carmine
Persico offered the agent $250,000 so Mr. Persico could get out of jail and told
the agent that Puglisi was working for him. The evidence at trial supports the
proposition that Carmine Persico was brought to New York because he and his
subordinates wanted that to happen and paid for it to happen. The jury's verdict
was proper under the circumstances. The defense contention that the Government
invented the crimes and manipulated Carmine Persico into committing them was
rejected by the jury and the Court sees nothing wrong with the [**6] jury's finding.

At the time in 1977 when the
Eastern District Organized Crime Strike Force was investigating the Annicharico
matter, part of it was taking place in the Strike Force offices. The prosecutor,
Joel Cohen, filed with the District's Chief Judge, Jacob Mishler, a sealed
affidavit setting forth the nature and progress of the investigation. A copy of
that affidavit, dated February 3, 1978, accompanied the Government's Memorandum
of Law on this motion. Mr. Cohen informed the Chief Judge about the writs and
the facts surrounding their issuance. Rather than disciplining the prosecutors
for misconduct, Judge Mishler permitted the investigation, including an aspect
involving Persico's filing false statements with the court, to proceed.

Despite Mr. Cohen's appearance in this Courthouse during the trial of
this Indictment pursuant to Carmine Persico's subpoena, Mr. Persico elected not
to call him as a witness.

The Government urges in its memorandum on this
motion on p. 19 and 25 that the defense failed to call Mr. Cohen because his
"testimony would utterly decimate Persico's misconduct claim" and "it is
inescapable that Persico sent Mr. Cohen home because his testimony would have
[**7] unmasked Persico's alleged misconduct
defense."

The Court will not speculate as to why the defense did not
call Mr. Cohen. But the fact is that they had every opportunity to call him over
Government objection. To reopen all this now would be a colossal waste of
judicial time and a gross abuse of discretion by this Court.

In partial support of his motion Carmine Persico submits an affidavit
from an attorney, John Jacobs. Mr. Jacobs was a member of the Eastern District
Organized Crime Strike Force at the time of the Annicharico investigation but he
"had no direct responsibility in the Annicharico undercover IRS investigation."
(Jacobs affidavit para. 4). The Jacobs affidavit states that, para. 7, in his
"opinion . . . the two writs of Habeas [*756]
Corpus Ad Testificandum were a sham." The affidavit, in para. 10, contains an
irrelevant and unwarranted bit of character assassination concerning a
distinguished Federal judge and concludes in para. 12 with a bit of rumor
mongering worthy of a second rate gossip columnist or a daytime soap opera as to
how the instant indictment was prosecuted in the Southern District of New York,
rather than the Eastern District of New York.

It should be noted that
Mr. Jacobs on several occasions during the trial came to the courtroom and the
Court observed him conferring with defense counsel during those visits. It is
significant that Mr. Jacobs did not choose to come forward until after these
convictions were obtained and that much of the information [**9] he claims to have, came into his possession nearly
nine years ago and yet this is the first time he has come forward.

A
cynic might also observe that Mr. Jacobs is presently representing Ralph Scopo
in United States v. Salerno, et al., SSS 85 Cr. 139 (RO) before Judge
Owen of this court. Mr. Scopo is an alleged member of the Colombo Family who was
severed during this trial due to ill health. Mountains of evidence in the form
of tape recordings with Mr. Scopo's voice on them were introduced in this trial
in connection with the Construction Companies' payoffs phase of this case. This
Court chooses not to be cynical and the Jacobs representation of Scopo plays no
part in this ruling.

The Jacobs affidavit affords no basis for a hearing
concerning Carmine Persico's claims. Mr. Jacobs has no personal knowledge of the
investigation and the defense had every opportunity to examine Joel Cohen, the
original prosecutor in the Annicharico phase of the case, before the jury. It
chose not to do so.

In connection with Alphonse Persico's phase of this
motion, Stanley Meyer, Esq. submitted an affidavit on September 17, 1986 in
paragraph 6 of which he has the temerity to state that "had there [**10] been no confusion because of the fact that his
uncle had the same name he had (Alphonse Persico), there is no way he would have
been convicted." This audacious assertion about "confusion" is so blatantly
false and insulting to the Court as to require special comment.

Throughout the whole trial, on literally scores of occasions, the Court
interrupted the proceedings to specially instruct the jury that references to an
"Alphonse Persico" were to the uncle, not the defendant nephew. There was no
possibility of "confusion" and to suggest otherwise in an affidavit, borders on
contemptible conduct.

Alphonse Persico, Anthony Scarpati, and John J. DeRoss
contend that the evidence on which the jury found them guilty was insufficient
to sustain the verdicts. Under applicable [**12]
law, their motions are denied.

A. Alphonse Persico

The jury found that Alphonse Persico committed two predicate acts of
racketeering and found him guilty of two counts of racketeering. His moving
papers contain attacks on the verdict and a recapitulation of his unsuccessful
arguments to the jury. Essentially, his sufficiency claims boil down to: (1)
there was no evidence from which a jury could conclude that he knew that he was
participating in giving a thing of value to a prison official when he arranged
for a Colombo Family associate in Las Vegas to take care of Ernest Goss's
expenses there; and (2) there was no evidence from which a jury could infer that
he believed that a federal official was involved in the bribery scheme seeking
to have his father, Carmine, moved to and kept in a prison near New York. The
arguments fail.

With respect to the Goss bribe, the evidence shows that
Alphonse Persico knew that Ernest Goss was a federal prison official when the
free trips to Las Vegas were arranged. Alphonse Persico was on his father's
visiting list at the Ashland prison (GX 816). Goss testified and records showed
that Alphonse Persico was coming to the prison to visit his father [**13] in July, 1979 (Tr. 7227-29; GX 812). Goss
testified that Carmine Persico's whole family came to the prison for a picnic on
about August 11, 1979 (Tr. 7346). Fred DeChristopher testified that Carmine
Persico told him that his son Alphonse had Colombo associate, Vinny Vingo,
arrange Goss' accommodations in Las Vegas (Tr. 13, 724). When viewed against the
backdrop of Carmine Persico's corrupt relationship with Goss, the jury was
justified in concluding that Alphonse Persico knew that Goss was a federal
official. The inference was a fair and proper one.

The jury learned that Joseph Iannuzzi told Dominic
Cataldo and one Thomas Agro that he had a "Government connection" in [**14] Washington, D.C., who could alter decisions made
by the Federal Bureau of Prisons. By apparently arranging for Cataldo and
Carmine Persico to be designated to the prisons of their choice, Iannuzzi proved
the supposed "connection." The proof showed that Carmine Persico, Gennaro
Langella, Dominic Montemarano, n1 Dominic Cataldo, and unindicted
co-conspirators Thomas Agro and Joseph Cataldo approved and/or participated in
the payment in April, 1982, of a $20, 000 cash bribe to Iannuzzi's connection to
compensate the "connection" for causing Carmine Persico to be jailed in the
federal prison at Danbury, Connecticut. On the evidence the jury was justified
in inferring that the defendant intended for the payment to be used to corrupt a
federal official.

The evidence was that Alphonse Persico's
involvement in the bribery scheme began no later than late February, 1982,
before the $20,000 bribe [**15] was paid. Agro
told Iannuzzi at that time that "Little Vic," a member of Alphonse Persico's
crew, was setting up a meeting between Agro and [*758] Persico (GX 717). Alphonse Persico's role in the
scheme was revealed in August, 1982 when Carmine Persico was transferred from
Danbury. A series of conversations recorded from Montemarano's telephone
demonstrated Alphonse Persico's participation in the bribery scheme (GX
745-756).

The jury was justified in finding that Alphonse Persico
participated in the bribery scheme charged, with intent to corrupt a federal
official.

B. Anthony Scarpati

Scarpati contends
that the evidence was insufficient to convict him. This is essentially a
reiteration of his unsuccessful jury argument that Arlyne Brickman, Frank Ancona
and FBI surveillance agent Ronald Andachter should not be believed. The jury was
justified in rejecting that argument.

With respect to the Brickman loan,
the tape recordings, the surveillance, and the testimony were sufficient to
sustain the jury's finding that Scarpati was guilty of loansharking.

With respect to the Ancona loan, the evidence was that Ancona personally
borrowed money from Scarpati (Tr. 7738), that Scarpati [**16] let Ancona know that he, Scarpati, was aware of
Ancona's problems with Scarpati's fellow loanshark and colleague in the Colombo
Family, Gennaro Langella (Tr. 7738), and that, because he knew that Scarpati was
a Capo in the Colombo Family, Ancona reasonably was afraid of what Scarpati
would do to him if he failed to make his payments (Tr. 7740). United
States v. Gigante, 729 F.2d 78, 83 (2d Cir.), cert. denied, 467
U.S. 1206, 104 S. Ct. 2390, 81 L. Ed. 2d 348 (1984). The evidence supports
the jury's verdict on the Ancona loan.

C. John J.
DeRoss

DeRoss' sufficiency claim repeats the unsuccessful
arguments over disputed facts that he made at trial and which the jury, by its
verdict, rejected. Government's Exhibit 350, the tape-recorded conversation of
DeRoss, the late Paul Castellano and Anthony Amodeo at Castellano's house, when
interpreted as the Government argued it should be interpreted, shows DeRoss'
active participation in the control of the restaurant unions by the Colombo and
Gambino Families and their use of that control to get payoffs from restaurant
owners. Negotiations are heard on the tape recording how a payoff from Frank
Sofia should be split between the [**17] Gambino
and Colombo Families. There is other evidence to the same effect including Frank
Falanga's n2 tape-recorded conversations with Vincent DiPenta about DeRoss being
Vito Pitta's n3 boss, and Carmine Persico's statements to Fred DeChristopher
about DeRoss being his man in control of the restaurant unions, including
specific reference to the Sherry Netherlands as a restaurant he controlled (GX
311-313; Tr. 13, 708-09). This evidence was sufficient to show DeRoss' knowledge
of and agreement to the payoffs. Whether DeRoss got money or whether the payoffs
in fact occurred is irrelevant because DeRoss was convicted of the racketeering
conspiracy, Count One. Obviously, this required only an agreement to commit
crimes, not proof of completed crimes.

John J. DeRoss
argues that the Government's failure to call Anthony Cece and Frank Sophia
violated his sixth amendment right to confrontation. It appears both from this
DeRoss motion and from previous motions made at and before trial, that DeRoss
knows the whereabouts of both Anthony Cece and Frank Sophia, whose testimony he
claims would have helped him. Further, they both have been [*759] spoken to by defense representatives. In United
States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 1125-29, 89 L. Ed. 2d 390
(1986), the Supreme Court held "that the Confrontation Clause does not
embody [any] rule" that requires the Government to call co-conspirators as
witnesses or to show that they are unavailable before using co-conspirator
statements. Id., at 1129. The Court in Inadi noted that if the
co-conspirators were available, the defendant could call them to testify, and
cross-examine them as hostile witnesses if necessary under Fed. R. Evid. 806, if
the defendant thought [**19] such testimony
would help him. Id., at 1127-28.

DeRoss' motion is denied.

Andrew Russo, Hugh McIntosh Motions

A.
Double Jeopardy

Defendants Russo and McIntosh contend that
their racketeering convictions in this case violate their rights under the
double jeopardy clause. This issue was substantially litigated by the defendants
both in this Court and in the Court of Appeals prior to trial, unsuccessfully.

In its July 23, 1985 Opinion and Order, this Court held that in
utilizing defendants' prior convictions or dismissed charges as predicate acts
of racketeering in a subsequent RICO case, the Government also must establish at
trial either that the defendants so charged engaged "in some type of
post-[guilty] plea unlawful conduct," or that the Government accumulated
evidence after the plea demonstrating "participation in a criminal enterprise."
United
States v. Persico, 620 F. Supp. 836, 844 (S.D.N.Y.), affirmed,
774
F.2d 30 (2d Cir. 1985). In affirming this Court's ruling that this
prosecution did not contravene the double jeopardy clause, the Court of Appeals
specifically declined to consider whether the Constitution required the
imposition of the condition [**20] established
by this Court. n4

n4 The Government continues to believe
that the condition imposed by this Court exceeds the requirements of the double
jeopardy clause.

It should be noted that at the conclusion of its
memorandum of law p. 33 on these motions, the Government further chided the
Court for "the latitude that this trial Court gave the defendants in attacking
the Government's proof, attacking the Government's witnesses, indeed, attacking
the Government itself." The Court acted only to insure a fair trial for both
sides and not to prolong the trial.

On April 26, 1982, Russo pleaded guilty in the Eastern
District of New York to one count of conspiracy and one count of obstruction of
justice in violation of Title 18,
United States Code, §§ 371 and 1505. These pleas arose out of the
Annicharico investigation. Neither specific crime was charged in the instant
Indictment, although Russo was accused of six acts of racketeering arising from
the same two-and-a-half-year bribery scheme which [**21] gave rise to the changes to which he earlier had
pleaded guilty. n5 The jury found that he had committed them in connection with
his membership in the Colombo Family racketeering enterprise and thus found him
guilty on the two RICO counts.

In addition to evidence that Russo was guilty of
racketeering as charged, there was also proof that Russo remained a leading
member of the Colombo Family enterprise up until the filing of the superseding
Indictment in April, 1985. Fred DeChristopher, his brother-in-law, testified
that Russo was "made" in late 1975 and remains a member of the Colombo Family
(Tr. 13, 663). This would be sufficient to satisfy the condition imposed by the
Court in its July 23, 1985 decision. There was, however, additional proof that
in 1983 and 1984, Russo with his sons skimmed money from the gambling earnings
of a cruise [**22] ship, the casino which Russo
controlled on behalf of the Colombo Family (Tr. 13, 677-81). There was evidence
that Russo remained a member of the enterprise based on the testimony of his
brother-in-law, Fred DeChristopher.

[*760] Carmine Persico, to prevent his apprehension and
prosecution on the instant Indictment, hid out at the house of Mrs.
DeChristopher, the sister of Andrew Russo. Arguably, a different choice would
have been made had Russo quit the enterprise. DeChristopher testified that
Carmine Persico, while hiding out, instructed him to "stay close" to Andrew
Russo when Russo got out of prison (Tr. 13, 685). Thus, while considering in
1985 the crime Family during his absence, Carmine Persico thought of Andrew
Russo.

The Government offered proof at trial that Russo remained a
member of the enterprise charged long after pleading guilty in the Eastern
District of New York.

Hugh McIntosh

On November
1, 1982, McIntosh pleaded guilty in the Eastern District of New York to one
count of bribery in violation of Title 18,
United States Code, § 201 in connection with the Annicharico investigation.
That charge basically constituted one of four acts of racketeering which
[**23] the jury in this case found he committed
in connection with his participation in the Colombo Family racketeering
enterprise. The briberies constituting the other three racketeering acts had
been charged in the Eastern District indictment, but were dismissed when
McIntosh pleaded guilty to the one bribery count.

At this trial, there
was proof that McIntosh engaged in those unlawful acts and that those acts were
committed in connection with the enterprise charged. There was also proof that
McIntosh remained a member of that enterprise after his role in the bribery
scheme ended.

In November and December of 1978, after McIntosh claims he
ceased his participation in the enterprise, McIntosh accepted 28 collect
telephone calls from Carmine Persico (GX 839). DeChristopher testified that
Persico later told him that this access to the telephone enabled Persico to
maintain his position as Boss of the Family while incarcerated. In August, 1982,
McIntosh met at Montemarano's social club in Brooklyn with Colombo Family
colleagues Montemarano and Gennaro Langella (GX 349G-H). On September 14, 1982,
McIntosh met with Langella, Montemarano, and Scarpati at the Casa Storta
Restaurant where Colombo [**24] Family members
frequently congregated. Further, there was evidence that on September 27, 1982,
McIntosh was observed meeting with Langella for an hour in Langella's car (Tr.
11, 596-98). In December, 1982, after his guilty plea in the Eastern District,
McIntosh was intercepted in telephone conversations with Langella. In one of
these, they arguably discussed Colombo Family business (GX 1019). On December
20, 1982, Langella and Scarpati were intercepted in a coded telephone
conversation discussing a meeting Scarpati was planning and whether McIntosh, an
associate but not a "made guy," was permitted to attend (GX 1008). He was.

Finally, Fred DeChristopher testified that Carmine Persico told him that
McIntosh remained a member of the enterprise, and that after McIntosh went to
prison on the Eastern District conviction, Persico authorized weekly payments to
McIntosh's wife of $500, for as long as McIntosh was incarcerated (Tr. 13,
719-20). The money was paid and accounted for by Scarpati and Alphonse Persico
(Tr. 13, 720).

The proof set forth above satisfies the condition imposed
by this Court in its July 23, 1985 ruling. The Russo and McIntosh double
jeopardy motions are denied.

This portion of the motions is put forth by the defense for the first
time.

Russo and McIntosh assert that the predicate acts of racketeering
arising from the lengthy scheme to bribe the IRS Agent for which they were
convicted, as a matter of law, cannot constitute a pattern of racketeering
activity. This claim is addressed to the face of the Indictment. The Government
urges that it is waived by the defense failure to raise it before trial. Fed. R.
Crim. P. 12(b)(2). The Government is no doubt [**26] correct.

However, it must be noted that
the racketeering acts in issue do constitute a pattern of racketeering activity.
The Court will not adopt the defense suggestion that the two-and-a-half year
series of payments and offers of bribes to Agent Annicharico of which the
defendants stand convicted is one crime. Such a contention is contrary to case
law. Even multiple payments pursuant to one extortionate demand constitutes a
pattern of racketeering activity. United
States v. Tolub, 309 F.2d 286, 289 (2d Cir. 1962);United
States v. Brooklier, 685 F.2d 1208, 1217 (9th Cir. 1982),cert.
denied, 459
U.S. 1206, 75 L. Ed. 2d 439, 103 S. Ct. 1194 (1983). Certainly, the several
bribes and bribe offers here, which stretch over a period of time, involving
various different members and non-members of the enterprise, seeking to
accomplish numerous illicit goals for the enterprise, including inmate prison
transfers, stopping federal tax prosecutions, preventing a state perjury
prosecution, and attempting to get a high Organized Crime figure out of prison
altogether -- set forth a pattern of racketeering activity envisioned by the
statute.

Jury
selection in this case commenced on October 15, 1985. The Court charged the jury
on June 2, 1986. The jury returned its verdict on June 13, 1986. A review of the
record of the twelve straight days of jury deliberation, during which the jury
was sequestered, irrefutably demonstrates that the jury carefully examined the
evidence before returning its discriminating and thoughtful verdict. As the
Government argues "defendants were given every conceivable opportunity to
dispute the Government's evidence and to defend themselves" (p. 33 Government
Memo of Law, September 15, 1986).

There has been nothing submitted by
the defense in these post-trial motions which warrants overturning this Court's
earlier rulings or the jury's verdict.